Before the Trial

Before the date of your trial, there are steps you can take to be better prepared. You and the plaintiff, and your lawyers (if you have them), may meet with the judge to discuss how the case will proceed. And you should start gathering your evidence, documents and witnesses, and anything you will need to prove your case.

A case management conference (CMC) is when both sides, the lawyers (if any), and the judge meet to talk about how to handle the case. Most civil cases have a CMC and it usually happens between 120 and 180 days from filing of the lawsuit. Some courts may not require the parties to come to court for the CMC if all sides in the case timely file the local court forms needed to schedule the trial date.

These forms include a Case Management Statement (Form CM-110). It asks about the status of the case and the time estimate for trial. Check your local rules of court to see if an appearance may be waived by filing the proper paperwork ahead of time. Always call the court a day or two ahead of a scheduled CMC to find out if the CMC is on calendar (meaning it is scheduled for hearing) or has been taken off calendar (no need to show up as the case will not be called).

For your case management conference

File a Case Management Statement (Form CM-110). Rule 3.725 of the California Rules of Court says every party has to file this form at least 15 days before the first case management conference. Parties may file a joint statement that they all sign, or they may file individual statements. It is important that you include in your statement any dates within the next 6 months when you will not be available for trial. This is to let the court know not to schedule the trial date for a time when you will not be available, like a planned vacation out of town or a hospital stay.

If the court requires the parties or their lawyers to be present, both sides must go. If the court accepts the Case Management Statement instead of requiring an appearance in court, then when you call the court to find out if the CMC is on calendar, the court can tell you it is off.

If the CMC is on calendar and the plaintiff does not go to the CMC, the court can schedule the case for a hearing for the plaintiff to explain why he or she did not go, and the court can impose a fine or sanction on the plaintiff for failing to appear. Remember, if a party does not go to a scheduled hearing, that party runs the risk that the court will make rulings that he or she disagrees with, that he or she may get ordered to pay sanctions, or, if it is the plaintiff who repeatedly fails to appear at scheduled hearings, the court might dismiss the case.

At the CMC, the case management judge will determine if everyone has filed their papers on time, and if the parties have tried to settle the case. Even if the case has not settled yet, you can still continue to try to settle. The judge will try to help you choose a good process for working on a settlement. Read the section Resolving the Case Out of Court for more information on settling your case.

You will also discuss whether the case is ready to be scheduled for a trial date. If it is, you may also get your trial date assigned at your CMC.

Gather and Prepare Your Evidence

To get ready for trial, you need to put together all the evidence that you want the court to consider to prove your case (and to disprove the other side’s case).

You may have collected a lot of this evidence before this point in your case, but if not, this is your opportunity to get ready. For example, you can gather your receipts and records to prove that the credit card company’s claims are untrue.

Some information that you need will not be available to you, but the other side may have it. So when you cannot get this information without the other side’s help, you have to work with the other side to give each other the necessary information. This process of gathering evidence from the other side is called “discovery.”

DiscoveryDiscovery is the process of gathering evidence from the other side to prepare your case for trial. During “discovery” you and the other side ask each other for information about each other’s case and use this information to prepare for trial. That way, when you go to trial, you will know what the evidence on both sides is. This helps you present your case better. It may also encourage the parties to settle because they can see the strengths and weaknesses of the case on both sides.

Both sides have the right to discovery, and both sides have the responsibility to provide the information that the other side requests as long as the request is legal, does not ask for privileged information, and complies with the rules for discovery.

You can find the rules for discovery in the Code of Civil Procedure starting at section 2016. Discovery can be very complicated and expensive, and the rules are very strict. If you do not follow the rules, you may not be able to use the evidence you gathered in court. Also, there are a lot of strategic decisions involved in discovery. Because of this, discovery is an area of your case where the advice of a lawyer can be extremely helpful.

In general, you have to finish discovery 30 days before the trial date. This includes all motions to force responses to discovery when the other side does not respond. Try to finish your discovery ahead of time. This will give everyone enough time to go over all the papers and get ready for trial.

The main kinds of discovery are:

·Demand for statement on account (bill of particulars) — a request for the plaintiff to provide you with a written statement giving you details about the accrued charges and debt the plaintiff claims you owe.

·Interrogatories — written questions for the other party that the other party must answer in writing and under oath. The answers can be used at trial.

·Depositions — oral in-person questions that the person being deposed must answer under oath. You can take the deposition of a party in the case or of “third-parties,” which are people other than those directly involved in the case (like expert witnesses). There usually is a court reporter who takes down everything that is said in the deposition and produces a written transcript. It is also common to videotape the deposition.

·Requests for production of documents — these are requests for a particular document or class of documents likely to be relevant to your case.

·Requests for admissions — when a party asks the other side to admit something is true, in general to allow the case to focus on what is actually in dispute. Responses to these requests can be used at trial.

·Subpoenas — requiring the other side or a third party to produce books, records, or other documents for inspection (a subpoena is a written order issued by a court forcing a person to testify or produce certain physical evidence such as records).

There are other kinds of discovery, too. You can read more about discovery in the California Civil Discovery Practice (published by Continuing Education of the Bar (CEB)) and California Forms of Pleading and Practice (Discovery volume). Your local law library will have these books and others to help you understand discovery.

If your case is ordered to mandatory arbitration, you will need to prepare your case to be heard by a court-appointed arbitrator who will decide the outcome. Either side can dispute the outcome by filing with the court and serving on all sides a Request for Trial de Novo After Judicial Arbitration (Form ADR-102). within 30 days of the arbitration award being filed with the court. But keep in mind that if the person who requests a trial de novo does not get a better result after the trial, he or she may be ordered to pay to the other side certain trial-related costs. Read Code of Civil Procedure section 1141.21.